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CandyCLC last won the day on April 7 2018

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  1. Update! PRA Lawyer just emailed... Dismissal WITH prejudice.
  2. Yes. One thing I don’t like about this court is that I rarely walk out of there with papers in hand. She told me to answer but of course this was before she figured out that she needed to look at that contract a little closer. And she didn’t even dismiss us really she set the date and then turn d her attention to the tv screen to address an inmate in jail. Strange.
  3. Interestingly enough the judge was about to order discovery and said witness lists etc must be made available by such time but that’s when she stopped completely and changed everything because she took the time to read the contract. Also interesting, in the hallway lawyer chat, aside from the normal “it’s expensive to arbitrate” crap, when I told him I’ve done my research and would like to move forward, he asked for 60 days in order for me to file. I didn’t bring up the clause in the agreement that states that they are the ones that have to initiate it. I saved that tidbit for court. After the judge read that to him, twice, he completely changed his response to something like “If that’s the case your honor, we’re going to take this time until the motion hearing to decide if we’re going to go forward or try to come to a resolution “. I can’t remember every word but I swear he said something about having my answer and a response of some sort. I’m just going to work on my answer, that’s all I need to do right now. My motion and the contract pretty much contain all the information needed to argue for the motion to be granted, I just want to be prepared for some language twisting and possible curve balls with PRA lately using Accounts Stated can’t be arbitrated. And any other things they claim that aren’t necessarily true. This isn’t the same judge I had last time, this judge I know for sure does more criminal cases than consumer, which could explain why she knows nothing about arbitration. When she was asking about discovery I basically told her that it was my understanding that discovery would happen in arbitration. That’s when she re-read the contract and ordered a court date for the motion. She was ready to get discovery and witnesses until she read that fine print that said the magic word “must” . That’s also when the lawyer started paper fumbling, even more when she told him that his client has to initiate the Arb. I gave the lawyer permission to email me regarding the case. I don’t want to get ahead of myself or get my hopes up but I’m telling you, I was a bundle of nerves when she started talking about discovery but everything changed when she took the time to read that contract again and pointed out things to the lawyer that were not in his favor. So my heart pounded for a minute but a sigh of relief washed over soon after. It’s not over yet but it’s a good start.
  4. I totally plan to. Especially with that case not too long ago on here where they guys MTC was denied because he didn’t answer correctly and didn’t admit to the debt. If I’m invoking the arbitration clause in the contract of the account I’m being sued on, isn’t that admitting the debt anyway? I’ll post the answer before I file.
  5. I’ll get in that answer this week, but in denying everything, you mean also denying the debt? And for the affirmative defense, is this where I’m to mention the pending motion to compel hearing? i did cite case laws in my motion about motion in lieu being acceptable in MI but as it is a smaller court, they just want an answer. I believe I did already download the proper court answer form so I’ll pull it up.
  6. Just got out of court, I didn’t settle. Motion hearing for Arb set for October 8. I stayed quiet until the lawyer asked the judge for 60 days in order for me to file. Judge asked if I had a comment and I pulled out the contract and read the provision that THEY have to initiate. Prior to that she was going to suggest mediation. Also she read the contract aloud herself, and she looked at the lawyer and said according to this contract, if it’s requested, it must be granted. I didn’t smirk or anything but inside my heart was pounding. The lawyer seemed pretty confident at the beginning but the contract and judge made him nervous and he changed from asking for discovery and things to saying he’ll be in contact with me. For reference, the judge doesn’t know anything about arbitration but they did not fully accept my motion in lieu and she said I have to answer the lawsuit as well. She said all of this before she re-read the contract. I think the lawyer wants an actual answer so they can file a response. He of course mentioned the costs. Outside the courtroom some lady mentioned a local arbitration service and the lawyer was all ooooh cheaper! But he obviously hasn’t read the contract that states it’s JAMS or AAA or the motion that states I have chosen JAMS. In any case I’m going home to get a nap, I have a ten hour shift later. I’m proud I didn’t settle, but I need to prepare for that court date to make sure it’s granted.
  7. BK - They called it a pre-trial conference, and when she entered in the motion, if I recall correctly, as a responsive pleading. What happened last time is the lawyer showed up right before and did his thing, the judge asked the status and the lawyer said we came to an agreement and handed the paper to the judge, asked me if I signed it and that was it. I don't know what the lawyer will offer tomorrow but I do have a limit I would agree to in a settlement. I am right now printing out a sort of cheat sheet of my arguments in support of Arb so that I don't spazz out and say something stupid like "You should grant my motion because I asked for it". I want my FAA rules and cases ready in black and white that will help me with my argument.
  8. BK - I did change my affidavit! Long overdue update but nothing exciting, filed my motion, got a pre trial conference hearing for Sept. 10. In other news, my new job is kicking my arse. Factory hard work at sometimes 6 days/58 hours a week. I am not used to this level of activity and my house is a tornado but I am getting it back together. My focus right now is pin pointing the case laws that are in favor of Arb in Michigan and also and finding the response if they try to say "account stated" can't be arbitrated. I want a handy dandy print out right in front of me, but also maybe try to commit the info to memory during my breaks at work.
  9. It is more accurate! As for the dates, the date the PRA affidavit was stamped was March 30. The day the summons/complaint was issued was June 12th. And then the day I was actually served was July 18th. I will make the change you suggested, how does everything else look? Should I change the wording on my affidavit too about the documents not being attached to their exhibit A? I am more than likely filing Tuesday, because I start my new job tomorrow and I will not know what my training hours will be until then. I will be running up against the time clock if I try to make it after work tomorrow but want to have everything ready in case I can still make it, but if I get put straight on the shift for days I know I will have another hour at least, and it's an hour drive from my work to the courthouse.
  10. Affidavit --------------------- STATE OF MICHIGAN IN THE XXX DISTRICT COURT, XXXXX COUNTY AFFIDAVIT OF CANDYCLC Case No: XX-XXXXXX NOW COMES Defendant in Pro Se, CandyCLC, whose residence is NunyaBusiness, MI certifies and says: 1. I am a resident of the State of Michigan, XXXXX County, and I am a competent person over 18 years of age. This affidavit is voluntarily made on my personal knowledge and, if sworn as a witness, I can testify to the facts in this affidavit. 2. On July 18, 2018, I was personally served at my residence with a copy of the Summons and Complaint in the above-captioned matter. None of the documents referred to in Plaintiff's Complaint were attached as exhibits. 3. I obtained a copy of the applicable 2016 Synchrony Bank Cardholder Agreement from the Consumer Financial Protection Bureau (CFPB) database at https://www.consumerfinance.gov/credit-cards/agreements/. (Accessed on July 18, 2018.) Under the Credit CARD Act of 2009, Synchrony Bank is required to provide copies of its written agreements to the CFPB so as to be easily accessible and retrievable by the public. A true and correct copy of the applicable Agreement is attached as Exhibit A. For the convenience of this Court, I have highlighted the section of the agreement that contains the Arbitration Clause, found on pages 4-5. 4. I elect to exercise my contractual right to have the disputes of this account and the disputed amount of $X,XXX.XX to be resolved by a JAMS arbitrator rather than in this Court. 5. I certify under penalty of perjury that the foregoing statements are true and correct. Dated: August 6, 2018 _________________________ CandyCLC, Pro Se STATE OF MICHIGAN COUNTY OF XXXXX Signed and sworn to (or affirmed) before me on:_____________________ My commission expires on:___________ ______________________(Notary's signature) Notary Public
  11. Here is my current. Personal info redacted and changed of course and the formatting is off per the usual - --------------------------------------- STATE OF AMAZING IN THE XXA DISTRICT COURT, XXXXX COUNTY PRA, LLC Plaintiff VS Case No: XX-XXXXXX CANDYCLC Defendant DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS, OR IN THE ALERNATIVE, STAY PROCEEDINGS PENDING ARBITRATION, IN LIEU OF AN ANSWER NOW COMES , Cand, Defendant in pro se, and hereby moves this Honorable Court to compel private contractual arbitration based on the Synchrony Bank Cardholder Agreement, (" the Agreement"), pursuant to MCR 2.116(C)(7), MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681- 1713, as grounds and authority. Pursuant to MCR 2.108(A)(1) and MCR 2.111(F)(2), Defendant in pro se is filing this Motion in lieu of filing an Answer and states the following: 1. On July 18, 2018, Defendant was personally served with the Summons and Complaint in the above-captioned matter. Plaintiff claims it is an assignee of Defendant's account with Synchrony Bank/GAP and seeks to collect an account stated balance. None of the documents referred to in the Complaint were attached as exhibits. 2. Defendant obtained a copy of the applicable 2016 Synchrony Bank/GAP Cardholder Agreement, (the "Agreement"), from the Consumer Financial Protection Bureau (CFPB) database at https://www.consumerfinance.gov/credit-cards/agreements/ (accessed July 19th, 2018). Under Section 204 of the Credit CARD Act of 2009, Synchrony Bank/GAP is required to provide copies of its written agreements to the CFPB so as to be easily accessible and retrievable by the public. A true and correct copy of the applicable Agreement is attached to the Affidavit of CandyCLC filed and served herewith as Exhibit A, and incorporated herein by reference. For the convenience of this Court, I have highlighted the section of the agreement that contains the Arbitration Clause, found on pages 4-5. 3. The "Agreement" states "If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Gap Inc. if it relates to your account. " (Page 4 Paragraph 16) Exhibit A 4. The “Agreement” states “This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA)” (Page 5 Paragraph 5) Exhibit A 5. The Federal Arbitration Act (FAA) 9 USC, §2 provides: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract.”  6. The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-15, governs actions in both federal and state courts arising out of contracts involving interstate commerce. Burns v. Olde Discount Corp., 212 Mich App 576, 580, 538 N.W.2d 686 (1995). State courts are bound under the Supremacy Clause, US Const, art VI, § 2, to enforce the substantive provisions of the federal act. Kauffman v Chicago Corp, 187 Mich App 284, 286; 466 NW2d 726 (1991). To ascertain the arbitrability of an issue, a court must consider whether there is an arbitration provision in the parties' contract, whether the disputed issue is arguably within the arbitration clause, and whether the dispute is expressly exempt from arbitration by the terms of the contract. Burns, supra, at 580. Any doubts about the arbitrability of an issue should be resolved in favor of arbitration. Id. In the present case, all three of the requisites to arbitration are established. There is a written arbitration clause that is part of a valid written contract. The claims at issue fall under the scope of the arbitration clause. Defendant, at the first opportunity, has sought to compel arbitration as permitted in the Agreement's "Enforcement" section. (Exhibit A, page 4 paragraph 16) 7. Additionally, the agreement states that “The party filing arbitration must choose an administrator, which can be either the American Arbitration Association (“AAA”), or JAMS, (Page 5 Paragraph 1) Exhibit A 8. The Supreme Court emphasized in its decision in AT&T Mobility L.L.C. v. Concepcion, 563 U.S. 333 (2011), that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored. "We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ." Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . " Id. 7. In lieu of filing an answer to Plaintiff's Complaint, Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Agreement (Exhibit A), pursuant to MCR 2.108(A), 2.108(B), 2.116(C)(7), 2.116(D)(2). "[D]efendants are entitled to file their motion to dismiss in lieu of filing an answer to plaintiffs' complaint." See Huntington Nat'l Bank v Ristich, 292 Mich App 376, 387-388; 808 NW2d 518 (2011); DeCaminada v Coopers & Lybrand, LLP, 232 Mich App 492, 494-496; 591 NW2d 364-367 (1998). 9. The FAA and the USC have determined that there is an absolute right to arbitration, if a contract contains a clause allowing for private contractual arbitration in lieu of litigation. WHEREFORE, for the foregoing reasons, Defendant respectfully requests that this Honorable Court grant this Motion to compel Plaintiff to arbitrate all of its claims alleged in the Complaint per the terms of the Arbitration Agreement and dismiss this action. In the alternative, the Court should order that this action be stayed pending completion of private contractual arbitration in JAMS. Respectfully submitted, _____________ _________________________ Dated Cand, Pro Se CERTIFICATE OF SERVICE I certify that on this date I served a copy of this Motion to Dismiss, or in the Alternative, Stay Case and Compel Arbitration In Lieu of Answer on the plaintiffs or their attorneys by certified first-class mail addressed to their last-known address(es) as defined in MCR 2.107©(3). __________________Date ___________________________________Signed
  12. Man I am all caught up! I don't even understand how someone in Idaho who doesn't know anything about Michigan laws can even come in here and spew some random things and expect me or anyone reading this, to just be scared and run from Arb. Honestly I think it's a troll debt buyer. Last time I was sued I didn't get the ball rolling in Arb but I filed an MTC that was serious enough that I was able to leverage a settlement on my terms, not theirs. I'm pretty confident in the MTC I did, and for this case, I am taking my case laws supporting why I'd like the case to move to Arb, so they can't come out with the account stated mess. Right now I just need to get my stuff filed and wait for the court date, and be awesome at my new job. It's factory work, and I am 40, so please say a quick prayer for my bones not to start feeling my actual age anytime soon 😁
  13. I keep overthinking the stupid answer form when I have already written a motion in lieu of answer before, including the corresponding case law (my other thread has it posted on there). You have to answer the lawsuit first and file the MTC either with it or after, OR, file an MTC in Lieu of an answer. I am going to file the MTC in Lieu again. It's $20 to file a motion in my county. but you definitely HAVE to answer by the date wether its a motion or an actual answer.
  14. I haven't posted any of the papers I am filing here, my affidavit attached to my MTC this time around will just be the CC agreement, I'm not even giving the PRA affidavit any of my time right now. I am filing the same motion to compel that I did last time but obviously changing it to reflect current information. I am going to file it next week, I have 5 days left.
  15. Posted on page 2 of this thread And whether it is the court or arbitration, they will have to provide statements, and if they think the agreement I have is wrong, they will have to provide the correct one too. It's their burden, not mine. They didn't attach a single statement, so I can't even see to dispute any of it anyway. I also know how late charges and fees work, my point is they served me a summons and complaint with an affidavit of a woman who works for PRA, and that is it, nothing else. I can't change the past and I won't try. My focus is compelling arbitration right now and what I need to argue that in court.
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